1613326 (Refugee)

[2019] AATA 829

1613326 (Refugee) [2019] AATA 829 (3 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613326

COUNTRY OF REFERENCE:                  Ukraine

MEMBER:Anne Grant

DATE:3 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 03 January 2019 at 2:50pm

CATCHWORDS

REFUGEE – protection visa – Ukraine –particular social group – draft evaders – conscription – right to enter Russia and Bulgaria – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

SZMWQ v MIAC (2010) 187 FCR 109

SZQRM v MIAC, [2013] FCA 1297

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Ukraine, applied for the visa on 15 September 2014 and the delegate refused to grant the visa on 25 July 2016.

3. The applicant appeared before the Tribunal on 10 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother, [name deleted]. 

4. The applicant was represented in relation to the review. The representative (the applicant’s mother) attended the Tribunal hearing.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

15. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

16. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

17. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act. 

18. S.36(3) of the Act also provides that: 

    Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

    Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issues in this case are whether the applicant has a well-founded fear of being persecuted for one of the Convention reasons if he returns to Ukraine and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Ukraine, there is a real risk that he will suffer significant harm.   In this case, also, an issue is whether the applicant has a right to enter and reside in a country which he has not taken all possible steps to utilise. 

21. At the commencement of the hearing I explained to the applicant that I was making a fresh decision based on my own findings about the facts in his case.  I am not bound by the delegate’s decision, and must therefore be satisfied that he satisfies each of the criteria in the legislation, including his having a well founded fear of persecution or the alternative complementary protection provisions, even though the delegate decided to reject his application because he was found to have a right to enter and reside in a third country that he had not taken all possible steps to utilise.

22. The applicant is a [age deleted] year old man from [Region 1] in Ukraine.  He is of Bulgarian ethnicity.  He claims to fear that, if he returns to Ukraine, he will be required to join the Ukrainian army by conscription, and he does not wish to fight, carry weapons or kill other Ukrainians.  At hearing, he confirmed that he maintains his fear of being conscripted and that his objection to being conscripted is not due to his religious beliefs, but because he does not want to kill or be killed in the conflict.  He prefers to stay in Australia where he has family. 

23. The applicant’s evidence at hearing was that he applied for protection whilst in Australia, because he heard that the Ukrainian government was taking people off the streets to fill the army, and he was fearful of that happening to him if he returned to Ukraine.  As far as he knows, he has not been officially ‘called up’ for military service.   However some of his friends in Ukraine have fled the country to avoid military service.  One of them went to Russia.

24. The applicant in his written claims claimed that if he refused to undertake military service, he would face imprisonment for ten years in Ukraine. 

25. At hearing, the applicant also raised concerns about living conditions in Ukraine being hard. His father passed away and his grandmother died in [2018]. He has no close family left in Ukraine. He also said that the price of fuel and food is high. Many people are forced to work multiple jobs. The family he has in Ukraine (his half-brother and distant relatives) are not particularly close to him, and his close family is here in Australia. He is unaware if the family has any property in Ukraine. His half-brother is looking after his grandmother’s affairs.

26. The applicant confirmed at hearing that he is of Bulgarian ethnicity, as noted in his written claims.  He gave evidence that he has never looked into taking Bulgarian Citizenship.  The applicant also gave evidence that he believed he could enter Russia and that he would be entitled to live and work there, and even apply for permanent residence and or citizenship after a period of time living there as a temporary resident – (he thought that period was three years.)    

27. I discussed the current situation for conscription in Ukraine as reported in various country information sources with the applicant.  According to the UK Home Office’s Country Policy and Information Note, Ukraine:  Military Service (April 2017), conscription was re-introduced in 2014, initially for young men aged 18 – 25 and later extended to 27.  The applicant is aged [age] years.  He would not be subject to those provisions.  The applicant agreed that he was older than [age] years but opined that people were being forcibly conscripted ‘off the street’ up to [age].  I informed the applicant that I had not been able to find evidence tending to support his suggestion that this practice takes place.  He said he had seen videos on the internet of such events, and had heard about it generally.  He was unsure if he could find the videos again.  Mainly he was relying on what people in Ukraine are telling him, and that is that lots of people are fleeing because they fear being forcibly enlisted as the conflict in Eastern Ukraine drags on. 

28. The country information discloses that prior to 2013, young men were required to undertake a year of military service in Ukraine.  The applicant agreed that was the case but gave evidence that he was not required to undertake the required year of service in Ukraine because, when he went for a medical, they discovered a [medical condition] and he was excused.  He has therefore never undertaken Military Service in Ukraine, and is not a member of any reserve forces. 

29. I discussed with the applicant that countries are generally considered to have the right to require citizens to undertake military service and that a requirement pressed on citizens to enlist to protect the country during a period of civil unrest (and to punish people who did not comply with such requirements) would not generally be considered to be persecution.  The applicant responded that he did not accept that it was fair that Ukraine could force him to enlist and kill people.  

30. I also discussed with the applicant that country information suggests that it is not reasonably likely that a draft-evader avoiding conscription or mobilisation in Ukraine would face criminal or administrative proceedings for that act, although if a draft-evader did face prosecution, it would be likely to result in the imposition of a fine or a suspended sentence unless there were aggravating issues which might lead to a custodial sentence.  The applicant responded that may be so, but some people still get imprisoned. 

31. I also raised with the applicant that, as found by the delegate, both the Bulgarian citizenship laws and the Russian citizenship laws appeared to provide him with a right to enter and reside in those countries, at least temporarily. As noted above, the applicant agreed that he could enter and reside in Russia, as had many of his countrymen over recent years.  The applicant expressed concerns with choosing to live in Russia, namely that there are restrictions on personal freedoms there and that he may not be allowed to ‘function freely’.   The applicant said if he had to go back to Ukraine, he would choose to travel to and seek to migrate to Bulgaria because it has European Union membership.  His first preference is to stay in Australia.

32. The applicant states that he fears returning to Ukraine because he does not want to be conscripted, or to perform military service, or to be involved in active duty. He claims he will be conscripted and required to perform active duty including in eastern Ukraine, if he returns.  He also fears that if he refuses or evades military service, he will be subject to prosecution and criminal punishment, including imprisonment for a lengthy period.  

33. As noted above, country information shows that conscription was reintroduced in May 2014 and that military service is compulsory for those aged between 20 and 27 years; and that reservists up to 65 years may be called to service, depending on rank.   The applicant is not a reservist and is older than the compulsory military service age.  He did not claim to have received any official notice calling him up for military service. The applicant referred to anecdotal evidence that men of his age were being ‘taken from the streets’ for military service.  I consider this to be speculation only and do not accept that he has established that this is what has been happening in Ukraine, or that there is a real chance that this would occur in future.    

34. Based on the country information, his past history, his circumstances and his age, I am not satisfied that the applicant has established that there is any chance that he would be conscripted or required to undertake a period of military service if he were to return to Ukraine.  Based on the applicant’s evidence and the country information before me, I am not satisfied that there is a real chance that the applicant would be conscripted for active duty, or that he would be punished for draft evasion or desertion of military service, now or in the reasonably foreseeable future if he were to return to Ukraine.

35. The applicant expressed a desire to stay in Australia and live with his mother and brother, because he would have a better life here, and noted that life would be hard in Ukraine.  He noted he has no immediate family left in Ukraine, and that living conditions and costs are high and life is difficult in Ukraine. The revised explanatory memorandum which introduced s.91R provides that the definition of ‘persecution’:

    … reflects the fundamental intention of the Convention to identify for protection by member states only those people who, for Convention grounds, have a well founded fear of harm which is so serious that they cannot return to their country of nationality, or if stateless, to their country of habitual residence. These changes make it clear that it is insufficient … that the person would suffer discrimination or disadvantage in their home country, or in comparison to the opportunities or treatment which they could expect in Australia.[1]

    [1] Revised Explanatory Memorandum to Migration Legislation Amendment Bill (No.6) 2001, at [25].

36. Whilst I accept that the applicant may suffer economic hardship and disadvantage in Ukraine, the evidence before me does not suggest that he would be the victim of discrimination for any reason in finding employment or that he would be prevented from earning a living in Ukraine.  The applicant has educational qualifications [information deleted].  The applicant did not suggest any reason why (or that) he would be targeted for discrimination or have his capacity to subsist restricted.  I have considered the applicant’s evidence overall, including that he is an adult and that prior to travelling to Australia, he was living independently of his mother in Ukraine for a number of years.  I am not satisfied that being isolated from his mother and brother and being subjected to the ordinary living hardships or reduced opportunity in Ukraine (even if that is what occurs on him returning to Ukraine) is of a nature which could be considered to be persecution or to cause the applicant serious harm. 

37. I find that there is not a real chance the applicant will suffer serious harm because he will be conscripted, or because he will be required to perform active duty, because he refused to perform military service or because he would be considered to be a draft evader.  I also find, based on the whole of the information and evidence before me, that there is not a real chance that the applicant will be persecuted for any convention reason if he were to return to Ukraine.

38. The applicant does not satisfy the criteria in s.36(2)(a).

    Complementary protection

39. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), I have considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ukraine, there is a real risk that he will suffer significant harm.

1. IN MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee definition.

2. I have found that there is not a real chance that the applicant will be persecuted if he returns to Ukraine, now or in the foreseeable future.   I refer to my discussion and findings above about the real chance of serious harm faced by the applicant.  I rely on my reasoning and my findings that the applicant is not of ‘conscript’ age, he has not been ‘called up’, that he also suffers a potential medical condition which would further lessen the chance of his being called upon to report for active duty, and that I am not satisfied that the information and evidence before me establishes that persons of the applicant’s age are being ‘pressed into’ or ‘taken from the streets’ for active service as claimed by the applicant.  I find that there are not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm because he will be conscripted, or will be required to perform active duty, or because he refused to perform military service or would be considered to be a draft evader if he were to be returned to Ukraine.

3. As noted above, the applicant referred to what he called generally difficult living conditions in Ukraine and a fear of being isolated from his family who live in Australia.  I accept that the applicant would indeed be isolated from his family if he were to return, and that the standard of living in Ukraine would be lower than in Australia.  However, significant harm is exhaustively defined in the Act as noted above in paragraph 16.  The living condition difficulties referred to by the applicant are general hardships faced by all citizens of Ukraine.  I acknowledge that the applicant may face such hardships on returning to Ukraine, but I am not satisfied that they amount to significant harm, as described in s.36(2A), on their own or cumulatively.

4. I find that, looking at the information and evidence before me as a whole, there are not substantial grounds (or any grounds) for believing that, as a necessary and foreseeable consequence of the applicant being returned to Ukraine, there is a real risk that he will face significant harm.

5. The applicant does not satisfy the criteria in s.36(2)(aa).      

6. The delegate found that the applicant had a right to enter and reside in Russia or Bulgaria, and refused his claim on that basis. As noted above, this issue was also discussed with the applicant during the hearing. 

7. Federal Law of No.115-FZ of July 25, 2002 on the legal position of Foreign Citizens in the Russian Federation provides as follows:

   Article 6. Temporary Residence of Foreign Citizens in the Russian Federation

   1. A permit for a temporary residence may be issued to a foreign citizen in the framework of the quota, approved by the Government of the Russian Federation. The term of validity of a permit for a temporary residence comprises three years.

   2. The quota for the issue of permits for a temporary residence to foreign citizens is annually approved by the Government of the Russian Federation on the proposals from the executive state power bodies of the subjects of the Russian Federation, with an account for the demographic situation in the corresponding subject of the Russian Federation and for the given subject's possibilities to provide for the foreign citizens' maintenance.

   3. A permit for a temporary residence may be issued to a foreign citizen without an account for the quota, approved by the Government of the Russian Federation, if:

   1) he was born on the territory of the RSFSR and was in the past a citizen of the USSR, or if he was born on the territory of the Russian Federation;

   2) he is recognized as incapable of working, while he has an able-bodied son or daughter, who is a citizen of the Russian Federation;

   3) he has if only one parent, incapable of working, who is a citizen of the Russian Federation;

   4) he is married to a citizen of the Russian Federation, whose place of residence is in the Russian Federation;

   5) he has made investments in the Russian Federation in an amount, established by the Government of the Russian Federation;

   6) in the other cases, stipulated by the federal law.

8. The Foreigners in the Republic of Bulgaria Act also includes the following provisions in relation to short stay and long stay visas (emphases added):

   Art. 14. (Amend., SG 42/01; amend. –SG 29/07; amend. –SG 9/11) (1) A short-stay visa shall be issued to a foreigner with the purpose of transit or planned stay on the territory of the Republic of Bulgaria.
   (2)The short-stay visa with the purpose of transit shall be with duration of the stay on the territory of the Republic of Bulgaria not longer for two days, if not otherwise provided in an international agreement, and shall be issued for a foreigner, who enters the Republic of Bulgaria and leaves its territory when travelling from one country to another country. The summary duration of stay with such visa cannot exceed three months within each 6-months period, counted from the date of the first entrance on the territory of the Republic of
   Bulgaria.
   (3) The short-stay visa with the purpose of planned stay shall be with duration not longer than three months, within each six-month period, counted from the date of the first entrance on the territory of the Republic of Bulgaria
   (4) The short-stay visa may be issued for once-, twice- or multiple- entrance.
   (5) The time period of validity of the visa and the duration of the permitted stay shall be determined on the base of the executed check of the terms of entrance and risk assessment when considering the visa application. Time-period of validity of the visa cannot be longer than 5 years.
   Art. 14a. (New, SG 42/01; revoked –SG 103/09)
   Art. 15. (amend. –SG 29/07) (1) (suppl. –SG 9/11; suppl. –SG 21/12) Long-stay visa with a validity term of up to 6 months and with right to stay for up to 180 days shall be issued to a foreigner who wishes to settle for an extended period or permanently in the Republic of Bulgaria.
   (2) (suppl. –SG 16/13) Long-stay visas with a validity term of up to one year and with right of stay for up to 360 days may be issued to foreigners, who carry out scientific research or who are students in one year educational programmes, post-graduate students or trainees, foreigners, sent on a business trip by a foreign employer in order to perform specific tasks, related to control and coordination of fulfilment of a contract for tourist services, as well as to foreigners, sent on a business trip by a foreign employer for making and maintaining investments, certified following the procedure of the Investment Promotion Act.
   (3) A long-stay visa shall entitle the foreigner to repeated entry in the territory of the Republic of Bulgaria within the validity termthereof.
   (4) A long-stay visa shall be invalidated at issuing a residence permit by the services for administrative control of foreigners.

9. The Bulgarian Citizenship Act provides as follows (emphases added)

   Art. 12. A person who is not a Bulgarian citizen can acquire Bulgarian citizenship if by the date of filing the application for naturalisation:

   1.     he has become of age;

   2.     before no less than 5 years has been given permit for permanent stay in the Republic of Bulgaria;

   3.     has not been convicted for premeditated crime of general nature by a Bulgarian court and against him criminal prosecution has not been instituted for such crime, unless rehabilitated;

   4.     (amend, SG 41/01) has income or occupation which enables his support in the Republic of Bulgaria;

   5.     (amend., SG 41/01; amend. – SG 74/09, in force from 15.09.2009) has control of the Bulgarian language which shall be ascertained according to an Ordinance by the Minister of Education, Youth and Science and

   6.     (New, SG 41/01) who is released from his present citizenship or will be released from it by the moment of acquiring Bulgarian citizenship.

   Art. 12a (Amend. And suppl., SG 41/01) A person who has obtained Bulgarian permanent residence according to Art. 25, para 1, p. 6, 7 or 8 of the Foreigners in the Republic of Bulgaria Act or as a family member of such person can acquire Bulgarian citizenship if he meets the requirements of Art. 12, para 1, items 1, 2, 3 and 4

   Art. 13. (Amend. and suppl., SG 41/01) A person who is not Bulgarian citizen, meets the requirements of Art. 12, item 1, 3, 4, 5 and 6 and, for no less than 3 years by the date of filing the application for naturalisation has obtained permit for permanent stay in the Republic of Bulgaria, can acquire Bulgarian citizenship if he meets one of the following requirements:

   1.     he has and maintains legally concluded marriage with Bulgarian citizen for a period no less than 3 years;

   2.     (revoked, SG 41/01)

   3.     was born in the Republic of Bulgaria;

   4.     the permit for permanent stay was given before coming of age;

   5.     (revoked, SG 41/01)

   Art. 13a. (1) (New, SG 41/01, suppl. SG 54/02; prev. text of Art. 13a – SG 52/07) A person who has obtained a refugee or protection status not later than three years by the date of filing the application for naturalisation can acquire Bulgarian citizenship if he meets the requirements of art. 12, item 1, 3, 4 and 5.

   (2) (new – SG 52/07) Any person, who has been granted humanitarian status before at least five years from the date of submission of the application for naturalisation, may obtain Bulgarian citizenship, if meeting the conditions referred to in Art. 12, Item 1, 3, 4 and 5.

   Art. 14. (Amend., SG 41/01) Person without citizenship can acquire Bulgarian citizenship if he meets the requirements of Art. 12, item 1, 3, 4 and 5 and not later than 3 years by the date of filing the application for naturalisation has had a permit for permanent stay in the Republic of Bulgaria.

   Art. 15. (1) (Amend., SG 41/01; prev. text of Art. 15 – SG 33/10) Person who is not Bulgarian citizen can acquire Bulgarian citizenship by naturalisation, without the presence of the conditions under Art. 12, item 2, 4, 5 and 6 if he meets one of the following requirements:

   1.     to be of Bulgarian origin;

   2.     (Suppl., SG 41/01) to be adopted by a Bulgarian citizen under the conditions of full adoption;

   3.     (New, SG 41/01) one of his parents is Bulgarian citizen or deceased as a Bulgarian citizen.

   (2) (new – SG 33/10) In the proceedings for obtaining Bulgarian citizenship by naturalisation the application for obtaining Bulgarian citizenship shall be accompanied by a certificate for Bulgarian origin, issued by the State Agency for the Bulgarians Abroad. The certificate shall indicate the information on which the Bulgarian origin has been found.

10. The applicant had provided a copy of the Delegate’s decision with his application for review.  In that decision, the delegate referred to country information about the right to enter and reside in Russia and Bulgaria including the legislation referred to above and reports from UNHCR and AngloInfo Russia.  The delegate noted that foreign nationals are required to complete a form called a migration card on entering Russia, which they must carry with their passport at all times for the duration of their stay. The migration card is free.  According to the country information, as referred to by the delegate, at 1 January 2015, Ukrainian citizens are able to stay in Russia without a visa or work permit for 90 days every six months.  The initial temporary stay of a foreign citizen cannot exceed 90 days unless they obtain an extension or a Temporary Residence Permit.  I note that this information is consistent with information in a report of the UNHCR from October 2017, as it relates to the Russia Federation at pages 1-2:

    “The Government of the Russian Federation has allocated substantial resources to meet the international protection and assistance needs of Ukrainian nationals, originating mainly from the Donetsk and Luhansk regions, passing several legislative and administrative measures to regularize their status and facilitate their integration.  Ukrainians from Eastern Ukraine continue to enjoy simplified migration regime, ie. They can extend their period of stay in Russia beyond 90 days without having to exit and re-enter the country.  Legislative changes were made to ease the path toward obtaining residence permits and naturalisation.  In particular, following the amendments to Art.8 of the Federal Law on the Legal Status of Foreigners, adopted in April 2016, Ukrainians who fled the conflict and were granted refugee status or temporary asylum in the Russian Federation became eligible for a simplified access to resident permits if they opted for the State Compatriot’s Programme:  namely, they were exempted from a requirement to first obtain temporary stay permits.”[2]

    [2] UNHCR Submission by the United Nations High Commissioner for Refugees For the Office of the High Commissioner for Human Rights’ Compilation Report Universal Periodic Review:  3^rd Cycle, 30^th Session:  RUSSIAN FEDERATION

11. I note the applicant is not from Eastern Ukraine so some of the provisions referred to above may not apply to him, but I consider that the country information as a whole suggests that Ukrainians benefit from ‘special’ administrative and streamlined visa procedures in Russia, enabling them to live, work and remain there with minimal difficulty.     

12. At hearing, the applicant did not dispute that the laws of Russia and Bulgaria and the country information as discussed and referred to above (particularly in the case of Russia) appear to provide him with a right to enter and reside in each of those countries (at least temporarily.) I note also that the Russian and Bulgarian laws as noted above also include the potential in each case for longer stays and work rights, including residence for extended periods - and in Bulgaria for potential citizenship by naturalisation in due course.  I also note and have taken into account that the applicant expressed a view that he could travel to and could enter and remain (and work) in Russia and apply for residence there after three years as a temporary resident.  He was uncertain of Bulgarian requirements.   He had never investigated the possibility of his entering Bulgaria before he came to Australia (or since). He had never heard of the State Agency for Bulgarians Abroad referred to in the Bulgarian legislation. 

13. In this case, I have already found that the applicant does not face a real chance of persecution now or in the reasonably foreseeable future if he were to return to Ukraine, and that there are not substantial grounds for believing that there is a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of his being returned to Ukraine. However, I note that the reason for the rejection of his claim for protection by the delegate was the application of s.36(3), so for completeness, I have also considered whether the applicant has taken all possible steps to avail himself of a right to enter and reside in a third country under s.36(3).   

14. In SZMWQ v MIAC (2010) 187 FCR 109 at [26], the Federal Court found that the concept of ‘reside’ need not extend to the ability to establish an abode in another country: it may amount to no more than just the temporary right to eat and sleep there, though ‘reside’ suggests something more than just a short or passing visit. In SZQRM v MIAC, [2013] FCA 1297, the court upheld a Tribunal finding that a right to enter and reside in the UK for three months could be characterised as a right to ‘reside’ within s.36(3) in circumstances where it conferred privileges normally associated with residency, including the right to work. I consider that, particularly in the case of Russia, the country information and law relating to the executive management of Ukrainian citizens entering Russia is sufficient to create a right to enter and reside (at least temporarily) in Russia for persons who fit the applicant’s profile, including the right to work and to apply for more permanent residence rights.

15. I find, on the basis of the information and evidence before me, that the applicant does have a right to enter and reside in Russia and a potential right to enter and reside in Bulgaria. I accept that the applicant’s potential right to enter and reside in Bulgaria cannot be sufficiently verified so as to satisfy the requirement in s.36(3) (as found by the courts) that the right to enter and reside must be an existing right, and not a potential right or expectancy.  I find that the applicant has a right to enter and reside in Russia temporarily.   Based on his evidence at hearing, I find that the applicant has not taken all possible steps (or any steps) to avail himself of a right to enter and reside in Russia, whether temporarily or permanently, as required by s.36(3). 

16. S.36(4) states that subsection (3) above does not apply in relation to a country in respect of which:  the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the person will suffer significant harm in relation to the country.

17. I asked the applicant if he had any fears about being persecuted or harmed for any particular reason or at all in Russia.  He replied that he did not, though he noted that life is likely to be hard because he had no family there.  I consider that the applicant’s expressed concerns about living conditions in Russia does not amount to a fear of persecution or a fear of serious or significant harm.  He stated that, if he was to choose to go to one of Russia or Bulgaria, he would choose Bulgaria, because if he became a citizen, it meant he could work in the European Union and there would be more opportunities there – but of course he would prefer to stay in Australia so he could live with and care for his mother.

18. On the evidence before me, I find that the applicant does not have a subjective or well-founded fear of being persecuted for any reason in Russia.  I also find that there are not substantial grounds for believing that there is a real risk that he would suffer significant harm in Russia as a necessary and foreseeable consequence of availing himself of the right to enter and reside there.  S.36(4) is not applicable in this case.

19. S.36(5) states that subsection (3) above does not apply in relation to a country if the person has a well-founded fear that the country will return the person to another country where the person will be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. I have found that the applicant does not have a well-founded fear of being persecuted in Ukraine.  The information and evidence before me does not suggest that there is any other country where the applicant would be refouled to where he would have a well founded fear of persecution.   I therefore conclude that there is no basis on which he could have a well-founded fear that he will be returned by Russia to a country where he will be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.    The applicant expressed no concern that he would be and did not advance any reason why he would face a risk of being returned to Ukraine by Russia.  On the basis of the evidence before me, I find that s. 36(5) does not apply in this case.

20. Subsection 5A provides that s.36(3) does not apply if the person has a well-founded fear that the third country will return him to a country where there are substantial grounds for believing that there is a real risk that the person will suffer significant harm as a necessary and foreseeable consequence of availing himself of the right to enter and reside in the third country. 

1. The applicant expressed no concern that he would be and did not advance any reason why he would face a risk of being returned to Ukraine by Russia. Tthere is no evidence or information before me suggesting that there is any other country where the applicant would be refouled to where there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.  I have found that there are not substantial grounds for believing that there is a real risk that he will suffer significant harm as a necessary and foreseeable consequence of him being returned to Ukraine.   I rely on those findings, and conclude therefore, that there is no basis on which I could find that the applicant could have a well founded fear that Russia will return him to a country where there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.  S. 36(5A) does not apply.

2. I have found that the applicant is not a refugee pursuant to s.36(2)(a). I have also found that the complementary protection criteria in s.36(2)(aa) are not met. Additionally, I have considered the provisions of s.36(3) in this case and I find that Australia is taken not to have protection obligations in respect of the applicant because he has not taken all possible steps (or any steps) to avail himself of a right to enter and reside in Russia, whether temporarily or permanently.  

3. There is no suggestion in this case that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.

4. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

5. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Anne Grant
   Member